Aquaqueen International Pty Ltd v Weber

Court of Appeal

New South Wales

Case Title:

Aquaqueen International Pty Ltd v Weber

Medium Neutral Citation:

[2014] NSWCA 101

Hearing Date(s):

20/03/2014

Decision Date:

20 March 2014

Before:

Beazley P at [24];
Emmett JA at [1]

Decision:

(1) Summons seeking leave to appeal dismissed with costs.
(2) Order 2 of the notice of motion filed 17 March 2014 refused and, to that extent, dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

COSTS - cost assessment scheme - enforcement of cost certificates - recovery of costs of the cost assessment process

PROCEDURE - judgments and orders - whether judgment obtained irregularly pursuant to the Uniform Civil Procedure Rules 2005 - whether judgment should be set aside on a discretionary basis

PROCEDURE - judgments and orders - in general - failure to be notified of judgment - whether prejudice thereby caused

CORPORATIONS - winding up - statutory demand under s 459E, Corporations Act 2001 (Cth) - failure to comply with statutory demand - application for order setting aside statutory demand

Legislation Cited:

Corporations Act 2001 (Cth), ss 459C, 459E, 459F, 459G

Cases Cited:

Kassem & Anor v Koutavas [2012] NSWSC 236

Category:

Principal judgment

Parties:

Aquaqueen International Pty Ltd (ACN 094 129 389) (Applicant)
Wolfgang Weber (Respondent)

Representation

- Counsel:

Counsel:
Applicant (represented with leave by its director, S Penson)
D Klineberg (Respondent)

- Solicitors:

Solicitors:
MSB Lawyers (Respondent)

File Number(s):

2013/283534

Decision Under Appeal

- Before:

Garling J

- Date of Decision: 

05 September 2013

- Citation:

[2013] NSWSC 1181

- Court File Number(s):

2012/3708022012/392186

Publication Restriction:

No

JUDGMENT

1. EMMETT JA: We have before us today an application for leave to appeal from orders made by Garling J on 5 September 2013 together with an application for a stay of those orders.

2. On 5 September 2013, Garling J dismissed a notice of motion filed on 11 December 2012 by the present applicant, Aquaqueen International Pty Limited (Aquaqueen). His Honour also dismissed an application filed on 17 December 2012 to set aside a statutory demand made on Aquaqueen by the present respondent, Mr Wolfgang Weber.

3. The notice of motion of 11 December 2012 sought the setting aside of a judgment entered in the Supreme Court on 28 November 2012 in consequence of the registration of costs assessments. As a result of that judgment, a statutory demand pursuant to s 459E of the Corporations Act 2001 (Cth) was made by Mr Weber. That prompted the second application for the statutory demand to be set aside, under s 459G of the Corporations Act.

4. The present dispute arose out of District Court proceedings commenced by Aquaqueen against…